Significant Employment Law Changes on the Horizon: What is Going to Change?

As stated during the Australian Labor Party’s election campaign, a raft of changes to Australia’s workplace laws have been proposed in the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Secure Jobs, Better Pay Bill), which was introduced to Parliament on 27 October 2022.

The Secure Jobs, Better Pay Bill is approximately 250 pages long and proposes several important changes to the Fair Work Act 2009 (Cth) (FW Act) and other employment legislation. The bill largely reflects the changes that were foreshadowed by the ALP during the election campaign.

Some of the major differences include significant changes to enterprise bargaining, and back-tracking on amending the definition of casual employment in s 15A of the FW Act, which was introduced by the Morrison Government.

The Secure Jobs, Better Pay Bill is just one of two significant industrial relations bills currently before Parliament. The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill (Respect at Work Bill) was introduced in September 2022.

If passed, amongst other things, the Respect at Work Bill will require employers to take proactive steps to prevent sexual harassment, sex discrimination, victimisation and conduct that causes a hostile work environment (which has been shown to increase the likelihood of harassment occurring). For more information on the Respect at Work Bill, see our article here.

While the impact of the proposed amendments brings uncertainty for employers, the amendments from the Secure Jobs, Better Pay Bill are yet to be made law and must pass through various levels of parliament prior to their introduction. It recently passed the first level through the House of Representatives on Thursday 10 November 2022 which resulted in 34 pages of amendments, and will now be debated in the Senate. It remains to be seen whether the Federal Government is able to pass the bill prior to the end of the parliamentary year on 1 December 2022. For now, we recommend employers start considering how the two bills may impact their business and if they will be ready to adapt.

We’ve set out an initial outline of the Secure Jobs, Better Pay Bill below, and will publish further insights as the amendments work their way through Parliament.

Outline of proposed changes

Issue Proposed amendment
Pay secrecyClauses in employment contracts preventing employees from discussing their remuneration or conditions of employment with other employees will be prohibited and made void at law. These clauses are typically called pay secrecy clauses.
Pay rate advertisingAdvertising of pay rates that would contravene the FW Act or an industrial instrument (e.g enterprise agreement or modern award) will be prohibited, unless the employer can show they have a reasonable excuse.
Anti-discriminationBreastfeeding, gender identity and intersex status will become protected attributes under anti-discrimination laws, joining attributes such as race, gender and marital status.
Gender equityGender equity will be made an objective of the FW Act, which will guide the Fair Work Commission (FWC) in exercising its powers (including in developing awards). The FWC will also be given greater authority to make equal remuneration orders, allowing pay increases in female dominated sectors.
Sexual harassmentAmending the FW Act to include a new provision that expressly prohibits the sexual harassment of a worker, prospective worker or person conducting a business or undertaking (PCBU). Employers would be vicariously liable for their employees’ conduct, unless they have taken all reasonable steps to prevent it from occurring.

This mirrors the approach already taken with respect to Work Health and Safety laws that require employers to ensure, so far as is reasonably practicable, the health and safety of workers and other persons at work.

In addition, the FWC would have power to make ‘Stop Sexual Harassment Orders’ on applications made within 24 months of a contravention, similar to ‘Stop Bullying Orders’, which requires the FWC to be satisfied the sexual harassment would not stop without an order.

Finally, a new framework would be introduced for dispute resolution of sexual harassment in line with the current model used for general protections dismissal proceedings (including mediation and/or conciliation prior to the commencement of proceedings or arbitration by the FWC where both parties consent).
Fixed term contractsFixed term contracts for a period of two or more years (including any extensions), or where the contract may be extended more than once, will be prohibited unless an exception applies. Exceptions are proposed to include specialised employees, apprentices and seasonal workers.
Flexible working arrangements  The circumstances where an employee can request flexible working arrangements will be expanded to include where a person or a member of their family or household experiences family or domestic violence.

Employers will also have additional obligations to respond to requests for flexible working arrangements, including providing reasons for refusing requests and employees will be able to challenge decisions rejecting flexible working arrangements in the FWC.
Enterprise Bargaining and AgreementsThere are a number of proposed changes to enterprise bargaining and enterprise agreements, including:

– the FWC approval process;
– making it more difficult for employers to terminate existing enterprise agreements;
– sunsetting all remaining enterprise agreements from prior to the FW Act  so they terminate 12 months after the amendments commence;
– increasing enterprise bargaining across multiple companies and organisations;
– a new process for calculating the better off overall test (BOOT);
– industrial action and bargaining disputes.

We will be exploring these changes in detail in future articles.

If you would like to discuss how the changes are likely to affect your business or to prepare for their introduction, please reach out to James Simpson or Timothy Zahara.

For more information, please contact James Simpson or Timothy Zahara.


Special Counsel